Newspaper column: Police should not seize property without a conviction

President Trump’s Attorney General Jeff Sessions has a reputation as a law-and-order guy, but the plan he announced this past week to step up civil asset forfeiture efforts skirts the law and jeopardizes order.

The plan is to reverse an Obama administration policy that restricted how often federal agencies would accept property — cash, vehicles, homes, airplanes — seized by local police agencies under suspicion it was used to perpetrate a crime such as drug dealing. That seized property is sold and the local police get 80 percent of the profits to spend as they see fit. This is called “equitable sharing.”

Sessions rationalized his policy change by saying “civil asset forfeiture is a key tool that helps law enforcement defund organized crime, take back ill-gotten gains, and prevent new crimes from being committed, and it weakens the criminals and the cartels. Even more importantly, it helps return property to the victims of crime. Civil asset forfeiture takes the material support of the criminals and instead makes it the material support of law enforcement, funding priorities like new vehicles, bulletproof vests, opioid overdose reversal kits, and better training.”

Often property is seized and no one is ever convicted of an actual crime. The owner of the cash or property essentially must prove themselves innocent in a civil court.

In a 2010 report called “Policing for Profit: The Abuse of Civil Asset Forfeiture,” the Institute for Justice (IJ) noted that the practice provides an incentive for local police to seize property to boost their budgets.

In this past session of the Nevada Legislature Sen. Don Gustavson of Sparks filed a bill that would have required proof of a criminal conviction, a plea agreement or an agreement by the parties concerned before property could be forfeited. The bill died without a vote.

“Nevada forfeiture law provides paltry protection for property owners from wrongful forfeitures,” the IJ reports. “The government may seize your property and keep it upon a showing of clear and convincing evidence, a higher standard than many states but still lower than the criminal standard of beyond a reasonable doubt. But the burden falls on you to prove that you are an innocent owner by showing that the act giving rise to the forfeiture was done without your knowledge, consent or willful blindness. Further, law enforcement keeps 100 percent of the revenue raised from the sale of forfeited property.”

Still, Nevada local law enforcement often engages in “equitable sharing” with federal agencies, according to IJ, which resulted in $21 million accruing to the local agencies over a decade.

There have been a number of instances in Nevada in which property was seized without anyone ever being charged with a crime.

In January 2013 police seized $167,000 from a man driving a motor home westbound along Interstate 80 in Elko County. A judge just recently ordered the money returned.

Over a two-year period Humboldt County deputies seized $180,000 in cash from motorists. One deputy was caught on tape telling a tourist, “You’ll burn it up in attorney fees before we give it back to you.”

The U.S. attorney’s office in Las Vegas demanded a local woman forfeit the $76,667 in salary she earned while running an office for her brother, who was later convicted of mortgage fraud. The sister was never charged. A federal judge called the forfeiture effort “the most egregious miscarriage of justice I have experienced in more than twenty years on the bench.”

This happened though the Fifth Amendment provides: “No person shall be … deprived of life, liberty, or property, without due process of law …”

In his policy announcement Sessions admitted there can be problems with asset forfeitures, but he promised to “protect the rights of the people we serve. Law-abiding people whose property is used without their knowledge or without their consent should not be punished because of crimes that others have committed.”

“The FAIR Act will ensure that government agencies no longer profit from taking the property of U.S. citizens without due process,” Paul said, “while maintaining the ability of courts to order the surrender of proceeds of crime.”

By The Editorial Board
July 20, 2017 7:25 p.m. ET
156 COMMENTS
In today’s polarized Washington, Jeff Sessions has managed the feat of uniting folks on the left and right. We’re referring to the Attorney General’s decision this week to revive an asset forfeiture program whose overreach proved too much even for the Obama Administration.

Civil asset forfeiture allows law enforcement officers to seize property such as homes and cars and cash thought to be paid for or generated by criminal activity. In 2015 then Attorney General Eric Holder restricted the practice. But before an audience of law-enforcement officials on Wednesday, Mr. Sessions revived it as a “key tool” to “hit organized crime in the wallet.” That’s the theory. But it has many problems.

I support Civil Asset Forfeiture laws. It is a great tool to insure criminals do not profit from their crimes. I have not been involved in this process in Nevada, but have used the laws in Texas, so I can’t commit on how the process is used here.

The procedure in Texas requires a filing to the court outlining the reasons for the seizure. Since this is a civil procedure, proof beyond a reasonable doubt is not required, but a preponderance of evidence must exist that the asset seized is the product of or was used in the commission of a crime. Both side present their evidence, and a judge rules on whether the asset is returned or is forfeited. This hearing is generally held within 48 hours of the seizure. The judge can order or grant a continuance for good cause (awaiting lab tests, production of financial records, etc.) It is the judge who controls the process from the initial hearing as a judge would control his normal docket schedule.

This is a reasonable process. A mandatory hearing within 48 hours allows an independent judge to review the actions of law enforcement in seizing the asset and either order its release or agree that enough evidence exists to warrant the asset being held for a full blown trial. A criminal conviction is not part of the statute as the trial involves property and not a person. The standard of proof is the same as in any civil trial – preponderance of evidence.

Example: Out of state owner of a motel was notified by certified mail on numerous occasions over a three year period of illegal activity occurring at the motel. Arrests and convictions for drug dealing, prostitution, possession of stolen property, and other crimes were made during this time period. The owner was suspected of profiting from this activity. Two managers were convicted of numerous criminal statutes, but refused to provide any evidence against the owner. No financial paper trail existed tying the owner to the money. Letters sent asking the owner to contact law enforcement / prosecutors to discuss steps to combat criminal activity at his property and warning of the asset forfeiture laws went unanswered. The totality of all the evidence led a judge to rule the owner was aware of the criminal activity, was profiting from the proceeds of illegal activity occurring over the three year period at his property, and he took no steps to stop or limit the circumstances which allowed the activity to occur. The motel was forfeited. The motel was seized and sold at auction. The new owner refused to rent rooms to certain persons, reported suspicious persons / activity, had his car fire bombed (an arrest and conviction occurred) and within a few months the area was cleaned up and crime in the neighborhood fell.

The laws are civil in nature and civil laws have always required a preponderance of evidence – not a criminal conviction of any party or even an arrest. Due process is certainly afforded by the civil hearings. Are there law enforcement agencies or officers which would abuse these laws? No doubt yes, but as with any law, the process of administering it properly lies with the court and supervisors in the law enforcement agency. When abused, the abuser should be held accountable, but we don’t through out the statute.

I would argue that the Texas case, as outlined by Barbara, is in itself an abuse. It is one thing to forfeit property used in the commission of a crime or property directly obtained through criminal activity, but to seize and sell a motel because the owner failed to police the clientele is a bit harsh. If persons were on or in the property and violating the laws then abate the “nuisance” or deny a business license but don’t forfeit the property. Moreover, a a former prosecutor, while the majority of law enforcement are honest and honorable, there are also far too many casesof dishonest and over zealous prosecutors and cops.

I would agree from the information given in the article, if true, the Massachusetts case would be an abuse of the statute and the judge issued a just decision. He should have went further (perhaps he did) and issued a ruling that the attorney fees be paid by the police department and prosecutors office. This would very effectively put officers and prosecutors on notice to not abuse these statutes.

Bill – I moved from Texas in 1993, so things may have changed. At that time Texas did not require a state business license. Neither did the county or city where this occurred. The owner was made aware of the forfeiture procedures in writing on more than one occasion. He did more than just fail to police the clientele. We proved he had knowledge of the activity, knowledge of prior criminal activity of employees, had policies that promoted criminal activities, refused to implement suggested changes that would have abated criminal activity, and more. He had his day in court. He lost. How is this an abuse?

We did not seize vehicles or property found with large amount of drugs without proof the owner knew of the presence of the drugs. My point with this example is that a criminal conviction with its higher standard is not necessary or warranted, but each seizure should be immediately reviewed by a judge and due process standards applied. If police or prosecutors abuse the statute, hold them accountable, but don’t throw out the whole statute.

I believe these statutes came about because of the Columbia drug cartels that were moving millions of dollars. In these cases it was hard to sometimes obtain criminal convictions (intimidation or death of witnesses) and the case would have to be dismissed or not filed in the first place. To keep these millions from going back to the cartels, the civil statues were used. Requiring a criminal conviction would gut these laws and be a boon to the criminal cartels.

Called a friend in Texas. Still the same – no state, county, or business license required. Why should the government be involved in the process of starting a business anyway other than charging a hidden tax called a fee. Started a 2nd business June 1 and still waiting for all the different entities to issue the numerous licenses.

“Houston, Zaher El-Ali, had sold the Silverado, on credit, to another man, who was later arrested for drunk driving and cocaine possession. El-Ali held title to the vehicle while the man paid off the truck. He had nothing to do with the crimes. But that didn’t stop local law enforcement from seizing the vehicle as “contraband” and filing suit against the truck (thus the strangely titled lawsuit). If El-Ali wanted to keep the truck he would have to hire an attorney and prove that he was an “innocent owner”: a legal standard higher than the one faced by criminal defendants.”

My real life experience proves differently. I have no problem with the proceeds not going to law enforcement, and my department was never dependent on such funding. I don’t support forfeiture funds replacing funding of departments.

Please for the love of God let that mean that this is yet one more example of a far right wing lunatic “libertarian” small “gov’ment” type sucking at the teat of the tax paying public that condemns public servants and immoral thieves because they benefit from those “gun trotting armed officers who steal our money at the point of a gun”.

You are halfway there Barbara, take the next step and stop supporting state sanctioned theft.

Once convicted in a public trial, then some kind of asset action could be appropriate…say victims suing for them. But states and cities and towns, never.
These entities are supposed to serve the public, not stomp on it.

Steve what you are reading in the media I contend is slanted and one sided. For example, in the Texas case of the car salesman who was financing the vehicle, my real life experience tells me there is more to this story. Legally, under Texas law, the title to this car would have to be surrendered to the state and a new title created in the new owners name with the car salesman listed as the lien holder. Apparently this was not done – an offense by itself in Texas. If he had not done this, he had no property rights to the vehicle. He would not be listed as an owner on a properly executed title nor as the lien holder. Under the forfeiture laws as I remember them, the lien holder would be paid once the vehicle was sold. A properly executed lien would have been recognized and upheld by any Texas court.

Do abuses occur? Of course, just as they do for any human endeavor. The purpose of Asset Forfeiture should be to remove profit or financial gain from criminality – not to enrich a police department. It does not surprise me that bureaucrats have used these funds in lieu of properly funding departments.

I have seen the laws used to great effect against very evil people. Most police officers and prosecutors have no desire to harm or deprive innocent people of their property..

Barbara, it has nothing to do with media.
I grew up in Massachusetts. I personally knew people who bought things that had multiple previous owners.
several of those people lost their boats, cars and travel trailers to this state sanctioned theft because someone, several owners previous, was involved in some kind of suspect activity but never accused or even detained.

I know this is nothing more than theft at gunpoint by government. It was very close.

The problem, as I see it, is that a preponderance of evidence essentially means if 51% of the evidence suggests guilt, then the state can take away a private citizen’s assets and even their means of making a living. A lot like a crap shoot, if you ask me. This low burden of proof also makes it child’s play for a government official, one of those people so mistrusted by Conservatives, to augment or suppress enough evidence to make an innocent party appear guilty or vice versa. Talk about too much governmental power! This is the stuff of third world countries.

This from the article – Over a two-year period Humboldt County deputies seized $180,000 in cash from motorists. One deputy was caught on tape telling a tourist, “You’ll burn it up in attorney fees before we give it back to you.” – it pretty much spells out the government’s game plan with this damnable practice that is ripe for abuse! This is not the due process envisioned by our founders!

Thanks for the reminder of the article, HighFlyin. And if memory serves me, the property was seized after routine traffic stops.

This, IMO, is abuse of the criminal process and an example of abuse by someone who is charged with protecting the public. When a policeman can seize property without any proof of a crime and thereby place the legal and financial burden on the citizen to prove that the property is lawfully in the possession of the citizen, then, our legal system and the underlying rationality are turned upside down. Guilty until proven innocent has never been a tenet of our law and is more fitting in a dictatorship.

Forfeiture of property used in the commission of a crime or property that is the fruit of criminal activity is proper. But, there must be a judicial process to do so.

Everyone is overlooking that there is judicial process. Police do not forfeit property. They seize it, but the order forfeiting the property is signed by a judge after a hearing. As usual, find fault with the police and make up facts or ignore those that don’t serve your narrative.

The police have incentives to seize since they get to keep the profits. The judicial standard for civil asset forfeiture is set far too low and can even affect people who had nothing to do with crimes committed by prior owners.

Barbara, What happened in Humboldt County? What was the basis of the police seizing the money that the travelers had? What was the crime that the police suspected? There has to be a probable cause for a criminal stop. What was the probable cause for the seizure?

Bill you are asking good questions that neither of us know because we have not read the reports. We cannot assume facts not in evidence and indict the officers. We cannot overlook the fact that there was judicial review. We cannot lead people to believe that the property was forfeited without this review.

A burglar breaks into a house and steals property. He pawns the property at a local pawn shop, is later caught and confesses. In his confession, he states what he did with the property. The police check the records at the pawn shop and find some of the property was sold. Search warrants are executed seizing the property from the people who legally purchased it from the pawn shop. What should happen to the property?

Utopia does not exist. Are people wrongly convicted of crimes and imprisoned. Yes. Should those laws then be repealed. No laws against rape and murder?

Insurance may or may not have covered the loss. There are limits on how much insurance pays for theft of items. Some items may not have been covered at all.

To hold the pawn shop owner responsible the police would have to prove beyond a reasonable doubt that the pawn shop owner bought the property knowing it was stolen property. Nope, the pawn shop owner is cannot be held responsible unless this proof exists.

To hold the pawn shop owner criminally responsible for buying stolen property requires proof beyond a reasonable doubt. That is all I said. I’m contending that the police lawfully seized the property from a person who came to possess it legally.

You have not answered the question of what should happen to the property? This is not some made up pie in the sky situation. It happens quite frequently. Quit dodging.

I’ve been very clear that I believe Asset Forfeiture is a very good tool to keep criminals from profiting from illegal activity. I agree that people do not understand these laws or the process by which property is forfeited. I agree that abuses have occurred and they need to be dealt with and reforms made. Your characterization of my understanding is totally wrong.

So your answer would screw the original owners who were victims of crime? They would have to give up priceless family heirlooms?

There was a hearing and the police had to file reports giving the circumstances of the seizure. A judge had to order the cash forfeited. Your knowledge of this incident is not complete. Small amounts are rarely forfeited under these statutes because the paperwork and time in court are prohibitive of such actions.

There was a hearing whether you attended or not. A judge has to order the property forfeited. Reports have to be filed giving the reason for the seizure. Perhaps you ran across officers who simply stole the money. Happens. Your knowledge of this procedure is incomplete.

Asset forfeiture involves property used and / or acquired from illegal activity. I personally have not seen any innocent person harmed from asset forfeiture laws, but I have seen innocent persons who acquired stolen property lose that property when it was returned to the original owners.

In my experience, vehicles purchased with drug money or used to transport drugs that were seized never resulted in innocent persons loosing any property rights. Lien holders were paid once the vehicles were sold. Vehicles that were purchased with cash were forfeited, but the dealerships that sold the vehicles kept the cash. In once instance, a son that used his mothers vehicle to transport drugs had the vehicle initially seized. After interviewing the mother, the vehicle was released to her as she had no knowledge of her son’s activity. This was not ordered by the judge – it never made it that far. The case officer made the decision and released the vehicle the next day. Are these stories ever published? No. Doesn’t fit the narrative of “legalized theft” does it.

Crime can ensnare innocent people in many ways and under varying circumstances. Is this a reason to invalidate a law when it happens? Better to correct the few examples or punish the abusers of the law as needed than to invalidate a law that has been shown to achieve great success in keeping criminals and criminal enterprises from profiting from illegal activity. A judge after hearing all the evidence makes the decision on the forfeiture just as he does in any civil case.

“Historically, the public was not provided with any information as to how this program was being used. But recently passed legislation now requires that all Nevada law enforcement agencies file annual reports with the Attorney General regarding their seizures and forfeitures.”

“In Who Does Civil Asset Forfeiture Target Most?, NPRI policy analyst Daniel Honchariw analyzed this data and found that most forfeitures were for amounts less than $1,000 — making it cost-prohibitive for innocent parties to contest the seizure, as the legal fees in doing so would almost certainly surpass the value of the seized property.”

“Low-dollar assets were not a rare occurrence in 2016, according to the report. There were 43 forfeiture cases involving assets worth $100 or less — with one case conducted over a paltry 74 cents!”

What I wrote was not theory but my experiences. I also read the NPRI report and found it disturbing. It does not reflect what I experienced. When properly administered the law is sound and an excellent tool.

The end goal of these laws is to remove the profit from criminality, not to enrich law enforcement. I would question the judgement of any law enforcement officer or prosecutor that would file these cases for such paltry sums. It is a good thing that some oversight has been brought in this area through the AG’s office.

It is great when people can have a dialogue and come to an understanding. That is my perception of your and Barbara’s discussions on this matter.

I have some first hand experience in civil forfeiture and while I agree that civil forfeiture is a good tool, still, it must be administered with due process safeguards and limited to property used in the commission of a crime or property that was acquired as a result of the criminal activity.

Like all laws, the forfeiture laws are susceptible to abuse,
Doing bad in the name of doing good can rarely be condoned.. .

Nevada may be different, but generally, asset forfeiture laws apply only to 1st and 2nd degree felony statutes including felony theft and felony drug laws. I don’t believe Texas has changed this requirement.

There are many cases in which property and cash are forfeited because the owner will not claim ownership because to do so would open him to criminal prosecution. A good example is drugs and money or stolen property found in a vehicle with multiple occupants. If the drugs and money or property are not found on the person, there may not be probable cause for an arrest. However, the drugs and money can still be seized and forfeited (subject to the felony drug requirement). Self incrimination in a civil proceeding can be used in a criminal proceeding and therefore the money may go unclaimed with no criminal arrest or conviction because possession under the criminal statute could not be established beyond a reasonable doubt.

This may be we where small amounts of money were seized and forfeited because no one claimed ownership. To claim ownership would have opened a charge of felony drug possession.

Texas has Civil asset forfeiture and has abused it just like many other states.
To Texas’s credit they are the third state in the union to introduce a bill trying to abolish this abomination.
I hope they pass it and soon.

BTW, Texas abuses also involved very small amounts of money, just like many others. This is due to the fact it makes it financially impossible to prove you are an “innocent” owner and the majority of the incidents are on the very people who don’t have much to begin with.

4TH ST8

"Burke said there were Three Estates in Parliament; but, in the Reporters' Gallery yonder, there sat a Fourth Estate more important far than they all. It is not a figure of speech, or a witty saying; it is a literal fact ... Whoever can speak, speaking now to the whole nation, becomes a power, a branch of government, with inalienable weight in law-making, in all acts of authority. It matters not what rank he has, what revenues or garnitures. the requisite thing is, that he have a tongue which others will listen to ... Democracy virtually extant will insist on becoming palpably extant."